Durable Power of Attorney

What is a Durable Power of Attorney (DPOA)?

A durable power of attorney (DPOA) allows someone you choose (an “Agent”) to make legal, financial, or healthcare decisions on your behalf, even if you become incapacitated.

DPOAs are critical documents for estate planning. They ensure that someone you trust will continue to care for your finances and healthcare if you’re unable to manage them yourself. Life is unpredictable, and you never know when illness or injury may leave you helpless.

There are two main types of durable power of attorney – general and medical. We provide samples of each below.

Durable Power of Attorney FAQ

Here are some questions people frequently ask about durable power of attorney.

What’s the difference between durable power of attorney and power of attorney?

The difference between durable power of attorney and power of attorney (meaning that it’s “regular” or “non-durable”) is that durable power of attorney remains in effect even if you become incapacitated, while the non-durable version does not.

• A durable power of attorney allows your agent to make decisions on your behalf even if you become incapacitated. For example, your agent can continue (or start) acting on your behalf if you’re diagnosed with dementia.
• A non-durable power of attorney is no longer effective if you become mentally incapacitated. For instance, if you have dementia, your agent will lose their decision making power.

Does durable power of attorney expire?

A durable power of attorney will only expire if:

• you revoke a power of attorney
• you become incapacitated (and it’s not durable)
• you die
• it has an expiration date

When should I use a durable power of attorney?

You should use a durable power of attorney if you’re:

• A senior citizen
• Scheduled to receive a surgery
• Living or traveling long-term overseas
• At risk of / have been diagnosed with a disease
• Amployed in a high-risk job
• A member of the armed forces deployed overseas

Without a durable power of attorney, you may have to pursue court-appointed guardianship of an elderly parent or loved one that becomes incapacitated.

What kind of power can I give to my agent in my DPOA?

You can grant your agent broad or limited power over your financial, real estate, business, or legal affairs with a general/financial power of attorney, or over your healthcare decisions with a medical power of attorney.

For example, when creating a general/financial power of attorney, you could grant your agent power to manage:

• Investments
• Banking activities
• Bill payments
• Contractual obligations
• Claims and litigations
• Real estate transactions
• Taxes
• Insurance claims
• Retirement accounts

Alternatively, you can limit or restrict your agent’s ability to manage specific affairs. For instance, you can give your agent the power to manage your banking activities but restrict them from touching your investments.

How do I restrict powers in my DPOA?

Most states provide a list of powers for you to choose from in their durable power of attorney form. You must demonstrate (e.g., by signing your initials) which powers you want to grant your agent. The method for indicating which powers you want to give will vary by state.

Who should I choose as my DPOA agent?

The DPOA agent you choose should be a close friend, family member, or spouse who is 18+ years of age, and:

• Knowledgeable of your personal values and wishes
• Someone you trust to make decisions on your behalf
• Prepared to accept the responsibility of managing your affairs

Consider designating a professional such as a lawyer, financial advisor, or accountant as your agent if you have a complicated estate.

Appointing an agent and deciding which powers to entrust them with is a critical step in creating your durable power of attorney. The person you select will have significant authority over your affairs and is legally required to act in your best interest.

You may also appoint multiple people as co-agents.

Steps can be taken to override a power of attorney document, if loved ones suspect misconduct or that the agent isn’t acting in your best interests.

How does my agent accept their designation as my power of attorney?

Some states require a signed statement confirming your agent’s acceptance of their role and responsibilities, as described in your durable power of attorney form.

Once your agent has accepted, they’ll need to learn how to sign as power of attorney on your behalf.

When does a durable power of attorney come into effect?

It’s up to you to decide if you want your durable power of attorney to take effect:

1. as soon as it’s signed (in accordance with the state’s signing regulations), or
2. upon your incapacitation.

Does my durable power of attorney need to be notarized?

Your durable power of attorney may need to be notarized depending on the state you live in. For your form to be legally binding, it must be signed in accordance with your state’s laws.

For example, a Florida durable power of attorney requires two witnesses and a notary public’s signature, while a Texas durable power of attorney only needs to be notarized.

To ensure you don’t end up with a powerless power of attorney, make sure you’ve met your state’s signing and other requirements.